It is difficult to say when exactly, but at some point in recent history the nominally-conservative arguments against homosexual marriage became untenable in popular discourse. In Canada, this seems to have happened at some point between the Supreme Court’s ruling in Reference Re Same-Sex Marriage [2004] and the official statutory legalization by the Martin Government in 2005.

In the United States, this is harder to determine because the process has been more drawn out, but I would nominate the passage of Proposition 8 in California — not the judicial overturning of the measure, but the actual measure itself. Whatever the intention of its framers, Proposition 8 was almost instantly interpreted by the public at large as a law that discriminated against a particular group — a major faux pas in contemporary American politics. While the trajectory of the debate was certainly different, the proverbial turning point in both cases was the legalization of the issue.

In its own way, Proposition 8 was to homosexual marriage’s opponents what Roe v. Wade was to legal abortion’s proponents: a temporary victory which turned out to be a long-term curse. This is because the debate came to be framed, if it was not headed in this direction already, in the way that the progressive left wanted it to be: namely, a legal issue that could be easily represented in classic cultural Marxist lingo — i.e., as a cause for the liberation of an oppressed group. Consequently, the entire question became a kind of public referendum that was less about the actual ability of homosexual couples to obtain civil marriage licences, and far more about the social acceptance of homosexuality tout court. In this way, the debate did — contrary to the insistence of its “nay” side — have a historical analogue in the movement to overturn anti-miscegenation laws. In that case, the argument was not only over the legal particulars of a black man and a white woman — or vice-versa — receiving the legal privileges associated with marriage. It was also about the less-tangible things like the ability of a couple to be together in public without the feeling that they were rebelling against the social milieu in which they found themselves. And regardless of the legal implications arising from this long-standing political dispute, the legacy of the homosexual marriage debate, akin to that of the mixed-race-marriage debate, will involve the more widespread social acceptance of the practice itself.

So while the argument was on the surface about law, it fundamentally sought a wider social purpose. Nevertheless, the legalization of the issue in the United States, like its judicialization north of the border, became the “critical juncture” in another important respect. It was here that support for “marriage equality” — the Left’s rhetorical slant on the question — became a litmus test for one’s status as a “right-thinking” person, especially on campus. Like the acceptance of Darwinism as an unquestionable truth, acceptance of homosexuality and homosexual marriage became as much of a mark of Millenial identity politics as it was about public policy or justice more generally. Instructively, I’ve noticed that nearly all of the students I meet who claim to be on the political right tell me that they are “economically conservative but social progressive” — code for being on the Right but still “right thinking” — pro-homosexuality and pro-Darwinism. Less negatively, the phenomenon of legalization gave otherwise conservative people who sympathized with homosexual marriage, such as the former Utah Governor John Huntsman, a language with which to advance their belief while remaining a part of the conservative movement.

In practice, all of this means that the spirit of a true argument is effectively over. Some opponents will continue to articulate the reasons for which they see homosexual marriage as either intrinsically wrong or extrinsically harmful, or both. I understand, for instance, that the Princeton constitutional philosopher Robert George, who wrote a very good text called The Clash of Orthodoxies, has written a new book that presents the freedom of conscience of social conservatives as an argument against the hegemony of secular liberal reasoning on this and other issues. But such attempts will not likely have any effect on the public acceptance of the matter at hand, which seems to be inevitable.

I write all of this as someone who thinks that there is actually too much controversy about homosexuality, apart from the more confined question of marriage, and that social conservatives have collectively expended too much political capital on this issue, which would be better spend on such progressive movements as the advancement of state-financed legal abortion and the legalization of physician-assisted suicide. But I will conclude by saying that there is something worth mourning in the legalization of the homosexual marriage debate. The framing of the question in this manner, as opposed to a wider socio-political framing, as well as the creation of an identity-politics angle to the argument, have effectively absolved Leftists of any duty to actually listen to what their opponents are saying. Anyone who is even broadly sympathetic to their position here cannot ask too many questions, just as anyone cannot probe too far about Darwinism without being asked, “Hey! Whose side are you on, anyway?”. Opposing homosexual marriage is what “they” think, so “we” don’t have to consider it. This is a shame, for beneath the base rhetoric with which the matter is mired at present lies a host of interesting questions about the marital institution, which is fundamentally a social issue with legal implications rather than a legal issue with social implications. If there is any lesson in all of this, it is that the territory of legal argument is where substantive political debate goes to die.